This blog is written by a former INS Trial Attorney (1976-82) who manages a seven-attorney law firm which specializes exclusively in immigration law.

10/13/2010

New BIA CSPA Decision

Being involved in a pending nationwide class action lawsuit regarding the Child Status Protection Act (CSPA) tends to focus one's attention on the operation of this statute. I try to read every CSPA decision rendered by a Federal Court or by the Board of Immigration Appeals (BIA). (Our final brief in the class action lawsuit was submitted to the 9th Circuit Court of Appeals on October 5th. We eagerly await the scheduling of oral arguments by the Court.)

The day after we submitted our brief, the BIA, in Matter of Murillo (A099 252 007) interpreted the phrase "sought to acquire" in section 3 of CSPA in an expansive matter, rejecting the argument of the DHS which would have resulted in Mr. Murillo being removed from the United States and separated from his parents for many years.

Here is the story.

Jose Jesus Murillo was born in Mexico on May 2, 1984. His father became a lawful permanent resident of the U.S. and petitioned his wife on October 16, 1995 under the family-based 2A category. Jose, being only 11 years of age was included as a "derivative beneficiary". The INS approved the petition on August 9, 1996.

A visa number became available to Jose and his mother on June 1, 2003 when Jose was 19 years old. However, the family's attorney did not file an application for adjustment of status under section 245(i) for more than one year.

The twist in the story is that CSPA does not require that Jose's application for permanent residence be "submitted" or "filed" before his priority date becomes current. Rather, CSPA requires that he must have "sought to acquire" permanent residence within one year of his priority date becoming current. This means, in Jose's case, that he must have taken action to become a permanent resident before June 1, 2004.

The record is clear that he hired an attorney to file an application for adjustment of status for him in April 2004. On April 30, 2004, Jose obtained a money order for filing fees payable to the INS. However, his attorney did not actually file the I-485 until November 26, 2004. This application was returned by the USCIS due to an error in the filing fee. The I-485 was resubmitted on December 18, 2004 and once again on February 1, 2005.

The I-485 was denied on the ground that Jose had not "sought to acquire" a green card within a year after his priority date became current, and he was placed under removal proceedings before an Immigration Judge. The Judge granted Jose's application for adjustment of status on the ground that he had met the "sought to acquire" requirement of CSPA by hiring an attorney to prepare and submit an I-485 on his behalf within one year of his priority date becoming current.

The DHS appealed the Judge's decision to the BIA. They argued that a person can only be found to have "sought to acquire" permanent residence if they "filed" their application for permanent residence within the one-year period.

Jose's attorney, and Mary Kenney, who authored a friend of the court brief on behalf of the American Immigration Council (AIC), argued that if Congress intended that a person must "file" an I-485 within one year of their priority date being current, they would have used the word "file" or "submit" or "apply" in writing CSPA. They cited numerous other laws where Congress did use these words.

The BIA held that they were not bound by the DHS' interpretation of a statute. Further, they held that if Congress meant "sought to acquire" to mean "filed", Congress would have used the word "filed" or a similar word, but Congress chose not to do so. The Board examined the Congressional intent in passing CSPA and found that it was passed to "bring families together".

Finally, the Board quoted a U.S. Court of Appeals decision in Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004) which held that CSPA should be "construed so as to provide expansive relief to children of United States citizens and permanent residents."

The Board held in favor of Jose Murillo. However, this decision is not a precedent, meaning that it only applies to Mr. Murillo, not to anyone else. Matter of Murillo is similar to a 2004 Board decision interpreting the words "sought to acquire", Matter of Kim.

The USCIS has now had over eight years to promulgate regulations to implement CSPA, but has failed to do so. We urge the Board to designate Matter of Murillo as a precedent in order to clear up any remaining uncertainty about the meaning of the words "sought to acquire" in CSPA.